High court OKs 'three strikes' law

Shoplifters may receive sentences up to life in prison under "three strikes and you are out" laws without violating constitutional safeguards against cruel and unusual punishment.

In two major 5-to-4 decisions announced Wednesday, the US Supreme Court upheld the lengthy prison sentences of two California shoplifters, saying that three-strikes laws are a valid means for state lawmakers and voters to attempt to sweep career criminals off the streets - even when their third crime is a relatively minor one.

The court said such sentences are not so grossly disproportionate to the criminal history of a career offender as to violate the Eighth Amendment's prohibition against cruel and unusual punishment. "State legislatures enacting three strikes laws made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional punishment approaches, must be isolated from society to protect the public safety," writes Justice Sandra Day O'Connor for the majority.

"Though these laws are relatively new, this court has a longstanding tradition of deferring to state legislatures in making and implementing such important policy decisions," O'Connor writes. "The Constitution does not mandate adoption of any one penalogical theory."

In a dissent joined by three other justices, Justice David Souter said there was no justifiable reason for such long sentences. "Whether or not one accepts the state's choice of penalogical policy as constitutionally sound, that policy cannot reasonably justify the imposition of a consecutive 25-year minimum for a second minor offense committed soon after the first triggering offense," he says.

Critics of the three-strikes law say the shoplifting sentences were grossly disproportionate to the underlying crimes.

"It is unthinkable to me that people can be put in prison for shoplifting a small amount of merchandise," says Erwin Chemerinsky, who represented one of the two shoplifter cases before the court. "How do you tell a person he will spend the rest of his life in prison because he stole $153 worth of video tapes?"

Michael Rushford of the Criminal Justice Legal Foundation in Sacramento says the court looked beyond just the most recent crime committed, which happened to be shoplifting. "The sentence isn't just for that crime," he says. "It's for your career of criminal activity and your past serious and violent crimes."

Leandro Andrade was caught shoplifting $153 worth of children's videos from two Kmart stores. A heroin addict with prior convictions for marijuana trafficking, prison escape, burglary, and petty theft, Mr. Andrade was sentenced to 50 years to life in prison. He won't be eligible for parole until he is 87.

Gary Ewing was sentenced to 25 years to life in prison after being convicted of attempting to shoplift three golf clubs worth $1,200 from a pro shop in El Segundo, Calif. According to police, he stuffed the clubs down his pants leg and limped off toward his car before being stopped.

Mr. Ewing had several prior convictions, for residential burglary and robbery armed with a knife. At the time he attempted to steal the golf clubs, he was still on parole. He won't be eligible for parole again until he is 63.

In Ewing's case, the high court affirmed the sentence meted out and upheld by California state judges.

In the Andrade case, the court reversed a ruling by a three-judge panel of the Ninth US Circuit Court of Appeals. The appeals court had ruled 2 to 1 that Andrade's sentence was grossly disproportionate and thus violated Eighth Amendment protections.

The high court said the Ninth Circuit was wrong to overturn the sentencing decisions of California state judges. The majority noted that under the Antiterrorism and Effective Death Penalty Act, federal judges are instructed to grant habeas relief only when lower-court judges have unreasonably applied a clearly established federal law.

The court said the law in this area of sentencing was not clearly established enough to permit the Ninth Circuit ruling. "The difficulty with Andrade's position," Justice O'Connor writes, "is that the court has not established a clear or consistent path for courts to follow."